Watchdog to lower standard of proof in barrister misconduct hearings
Prosecutors of barristers accused of breaching professional rules will no longer have to meet the criminal standard of proof, the watchdog for the profession has announced.

The Bar Standards Board said that it would amend the standard of proof applied when barristers face disciplinary proceedings for professional misconduct.

It had held a public consultation on the proposal, which still needs to be approved by the Legal Services Board, the overarching regulator of all lawyers in England and Wales.

If the proposal is approved, the standard of proof will change from the criminal definition, beyond reasonable doubt, to the civil standard of on the balance of probabilities.

Board officials said that the move “will bring the Bar’s disciplinary arrangements in line with most other professions”.

It will also provide a boost to the Solicitors Regulation Authority, the watchdog with direct responsibility for the largest branch of the legal profession. The authority has for some time been battling with the Law Society, the body that represents 130,000 solicitors in England and Wales, over its aim to make the same change.

The Law Society has argued that because solicitor disciplinary tribunals can strike off lawyers and effectively bring an end to their careers, the highest standard of proof should remain in place.

The Bar Standards Board said that the revised approach would require “a period of preparation” at the Bar Tribunals and Adjudication Service. Therefore, it anticipated that the reform would not come into effect until the end of March 2019. “The revised standard will complement other changes that we have made recently to improve our rules and processes,” Sara Jagger, a BSB director, said.

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England’s legal profession took another leap towards fusion yesterday when the body that regulates barristers began licensing legal services businesses that include solicitor and non-lawyer partners.

The move will put the Bar Standards Board, the barristers’ watchdog in England and Wales, on par with the body that regulates solicitors. The Solicitors Regulation Authority has for several years been licensing alternative business structures, which have included solicitors, barristers and non-lawyers.

For the past two years, the BSB itself has been able to regulate “entities” that are owned by barristers and solicitors. Yesterday’s move means it will now be able to regulate ABSs that include non-lawyers.

The BSB said it was issues an updated version of its rules handbook, which sets out the position regarding ABS licensing.

“Although we are cautious about the number of ABSs that may choose to be regulated by us, we believe this development encourages further innovation in the provision of legal services,” said Oliver Hanmer, the board’s director of regulatory assurance.

“Being a specialist in regulating advocacy-based services, our announcement today allows barristers and other lawyers to partner with other business professionals to bring new skills and fresh perspectives to this sector of the market.”

The Bar Standards Board expects to begin licensing alternative business structures imminently, saying long-awaited approval could be granted in the next few weeks.

In its business plan for 2017/2018 – due to be published this week – the regulator will state: ‘We expect to be able to licence ABSs that are jointly owned and managed by both lawyers and non-lawyers in April 2017.’

The BSB is awaiting final parliamentary sign off under the Legal Services Act and the Gazette understands this is imminent.

However, the regulator has struggled to meet its predictions before. In March last year, the Gazette reported that the BSB expected to be licensing ABSs in October that year. It had previously predicted dates as early as 2014.

Also revealed in the business plan is a slight reduction in the BSB’s 2017/2018 budget. For 2017/2018 the budget is £7.8m – down from £8.04m in 2016/17.

The regulator attributed the fall to an expected drop in income from BCAT and BPTC training courses on the assumption that a new training regime, approved last week, will lead to students deferring enrolment.

In addition, the BSB said it is seeking approval under Section 69 of the Legal Services Act that would allow it to intervene into legal practices.

The BSB said: ‘We are also seeking additional powers in relation to those we regulate already. If approved the order will grant us new powers to intervene into legal practices where it is necessary for us to do so in order to protect clients.’

However, it said this would be a ‘rare occurrence’ and used as a ‘last resort’.

The regulator will also seek to warn the public of the differences between barristers and paid McKenzie friends – and to work closely with solicitors on the issue. ‘We will seek to encourage the profession to cooperate more closely with solicitors and other legal professionals where that may offer advantages for the public,’ the business plan states.

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The Bar Council has warned unregistered barristers acting as solicitors’ agents that they could face prison if they do not comply with a ‘narrow’ area of law.

In guidance published this week the body said anyone working as a solicitor’s agent needs to ‘consider carefully’ whether they meet requirements outlined in the Legal Services Act 2007.

The guidance, which follows a similar warning published last year, has been reiterated because ‘it is understood that there are a number of unregistered barristers currently appearing in court as solicitors’ agents’.

It also references two recent hearings McShane v Lincoln (June 2016) and Ellis v Larson (September 2016), in which solicitors’ agents were judged not to have rights of audience. In McShane the case centred on a pre-action protocol for low-value personal injury claims in road traffic accidents. Ellis was focused on a similar claim.

The council warned that the decision of District Judge Peake, an ‘experienced district judge’ in McShane, that the agent did not have rights of audience is ‘likely to be persuasive’ in other similar cases.

The conditions under which solcitors’ agents can be exempt under the LSA 2007 are: that the individual must assist in the conduct of litigation; must be under instruction from an authorised person (usually a solicitor) and that the hearing must be heard ‘in chambers’.

‘All individuals undertaking work as solicitors’ agents are urged to consider carefully whether they fulfil the requirements upon accepting every new instruction and when attending at court,’ the council said.

It added: ‘It is a criminal offence for a person to carry on a reserved legal activity unless he is entitled to do so, such being triable summarily or on indictment, the latter carrying a maximum penalty of two years’ imprisonment.

‘The Bar Council is concerned to promote compliance with the act, since this is in the interests of the proper administration of justice, the protection of consumers and the protection of unregistered barristers who might otherwise open themselves up to potential criminal liability.

‘They should consider with care whether the nature of their work properly enables them to describe themselves as assisting in the conduct of litigation in the narrow sense explained.’

Bar regulators have allowed equality and diversity initiatives to slip and have been told to act immediately to restore them, the watchdog’s independent observer has said.

Isobel Leaviss, who has the role of providing independent oversight of the Bar Standards Board, said that she was “surprised” not to have found publicly available equality and diversity data for various professional conduct elements at the regulator.

Up to date recording and monitoring of equality and diversity data for the committee and board members at the BSB responsible for professional conduct “was not in place,” said Leaviss in a reportreleased on Friday.

She went on to say that “equality and diversity induction training for new members appeared to have lapsed”. Leaviss called on the regulator to remedy both shortfalls.

The BSB said that it had accepted the observer’s recommendations. Vanessa Davies, the board’s director, welcomed the report’s findings, saying that Leaviss’s “contributions ensure our complaints-handling process continues to be refined and improved, particularly in the context of being a risk-based regulator”.

The Legal Services Board has hit back at the International Bar Association for citing it as an example of creeping government control of the legal profession.

International Bar Association task force said the LSB, set up under the Legal Services Act, was an example of ‘external involvement in the regulatory scheme’. ‘Where there is some executive control over the regulatory process the risk of infringements on lawyers’ professional independence is greater.’

The LSB has called for the statement to be removed from the report.

LSB’s chief executive, Neil Buckley says the references to the board are ‘inaccurate’, specifically the implication that it is controlled by the government.

Buckley states: ‘No decision made by the LSB and its executive has ever been at the “control”, behest of or subject to any improper influence whatsoever by the government.’

The Bar Standards Board list of “threshold standard competences” 36-page document sets out “the minimum level or standard to which the competences should be performed on day one of practice”.

Barristers, says the “professional statement” document, “will have an effective command of the language and be able to use it appropriately, accurately and fluently so as to handle complex and detailed argumentation”.

Barristers should “use correct and appropriate vocabulary, English grammar, spelling and punctuation in all communications”. And the board requires that barristers must “speak fluent English”.

“The paper we are publishing today sets out the LSB’s vision for a future regulatory framework for legal services in England and Wales.

We believe that further legislative reform would help address current challenges and make the step change needed to improve outcomes for consumers, citizens and practitioners.

There is a need to tackle the tensions inherent in the existing framework. A new legal framework will help secure the important public interest outcomes that the legal sector delivers, such as maintaining the rule of law and ensuring access to justice. It will also strengthen the contribution the legal sector makes to the reputation of the UK as a great place to do business

Any new legislative framework should take a risk-based approach to regulation and focus on the activities undertaken by providers. It must also be fully independent of the professions and Government.

The existing arrangements are confusing and complex. We believe that a single regulator, covering the whole legal services sector and accountable to Parliament, would be best placed to deliver improvement, deregulate, save cost and act strategically.

I look forward to discussing these proposals with the Government and interested parties.”

The BSB has published its latest annual report, which summarises its achievements during the 2015-16 business year and during the course of its last three-year strategic plan which concluded on 31 March 2016.

BSB Chair Sir Andrew Burns said: “We are well on our way to becoming the fully modern and efficient regulator that we said we wanted to be at the start of the strategic period in 2013.

“Over the course of the past three years, we have transformed nearly every aspect of the way we regulate the Bar. We have become more outcomes-focussed and risk-based in everything that we do. This helps us prioritise our work while maximising value for money.”

The BSB’s key achievements in 2015-16 were:

The publication of a Risk Outlook – an important document which provides an overview of the biggest risks in the legal services market and which sets out the BSB’s regulatory priorities;

Improving our dialogue with the Bar, consumers and other key stakeholders and holding a number of events throughout the year to seek their views on a wide range of topics, such as the future of Bar training;

Publishing the new Professional Statement, which describes the skills, knowledge and attributes expected of barristers at the point of authorisation;

Piloting an improved, more flexible Continuing Professional Development (CPD) regime for barristers in preparation for its roll-out in 2017;

Undertaking a major piece of research into women’s experiences at the Bar;

Beginning a review of immigration advice and services;

Commissioning research into Youth Court advocacy standards and adopting the resulting recommendations; and

The Legal Services Board (LSB) recommending that we should begin authorising Alternative Business Structures (ABSs) – a recommendation which the Lord Chancellor has now approved.

During the period of its last strategic plan, the BSB reduced the overall cost of regulation by two per cent.

Online courts could hear thousands of cases

An online court should be created to hear civil claims valued at up to £25,000, the judge tasked with overhauling the courts system has recommended.

The controversial proposal, released in a report yesterday, from Lord Justice Briggs (pictured), triggered warnings from lawyers that most claimants would be channelled into a “second tier” system where they would be forced to pursue complicated actions without legal advice.

However, according to the final report of his structure review of the civil courts, Lord Justice Briggs, a Court of Appeal judge, enthusiastically backed the pilot online court programmes, which could ultimately hear tens of thousands of case annually. “The online court project offers a radically new and different procedural and cultural approach to the resolution of civil disputes,” he said.

The Times reported that the judge claimed that moving lower grade civil claims to an online dispute system “may pave the way for fundamental changes in the conduct of civil litigation over much wider ground than is currently contemplated by its first stage ambition, to resolve money claims up to £25,000 subject to substantial exclusions.”

His suggestions have already stirred concern at the Bar Council, which represents barristers in England and Wales. “Any moves towards an online court for claims of up to £25,000 must avoid the risk of entrenching a system of two-tier justice,” said Chantal-Aimee Doerries, QC, the council’s chairwoman.

The Bar fears that “individuals opting to use a lawyerless online court process could easily find themselves in litigation with big organisations which can afford to hire their own legal teams”.

David Greene, a former president of the London Solicitor Litigation Association and senior partner at the law firm Edwin Coe, said: “It is vital that we all have confidence in the online court, its functioning and development. The marriage between IT and the court process has not always been a happy one and so the recognition by Briggs of piloting with smaller claims is all important”.

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